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Dimitry K., Esq., Attorney

Category: Family Law

Satisfied Customers: 40197

Experience: I provide family and divorce law advice to my clients in my firm.

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Hello, My ex boyfriend and I both had private attorneys

Resolved Question:

Hello,

My ex boyfriend and I both had private attorneys and I got a rest order against him civally for hitting me and being abusive, and he got one against me right after he was served,and he got one against me for having called his phone and text him so much in a day. we both were granted our resttraining orders for 1 year and they both expired in june 2008.

Well, I started speaking to him about 8 months ago, and we have been on/off. But he started hitting me again and went to jail 3xs in a matter of 2 months for domestic violence. There is now a mandatory criminal " peaceful contact" order which the judge has issued against him, and he is on probation for next 3 yrs.

My problem is that I did text and call him repeatedly for several weeks,several times a day,maybe 40xs a day,but that all stopped as of 2 weeks ago. I have only text him one time in the last 2 weeks, and I should note, NONE OF MY TEXTS OR VOICEMAILS WERE EVER THREATENING TO HIM, THEY WERE ONLY ME EITHER CALLING HIM AN ASSHOLE LIAR,OR ME CRYING ON THE PHONE ABOUT HOW MUCH HE HAS HURT ME. WELL, now I guess someone has slashed 4 tires on his car, and he is blaming me, even though It really wasnt me,I am pretty sure its his ex girlfreind who has caught him cheating, but he is saying he going to get a restraining order against me

So my questions are:

1) is he likely to be granted a rest order even though it has been 2 weeks and I stopped calling and texting?

2)if he does get granted a rest order, will this show up in a background check when I go to apply for jobs? (its a civil rest order, not criminal,but will it show up?

1) is he likely to be granted a rest order even though it has been 2 weeks and I stopped calling and texting?Yes, a restraining order will still likely be granted. That is because you have a history and also because contact does not have to be violent to be unlawful--it simply has to be unwanted. Calling someone names and texting them 40 times a day would not be deemed reasonable, and therefore should he file, it would be likely provided against you.

2)if he does get granted a rest order, will this show up in a background check when I go to apply for jobs? (its a civil rest order, not criminal,but will it show up?It should not appear, as a restraining order is civil in nature. You will not have this on your criminal record.

3) what is my best course of action at this point? The best is to cut off all contact and not get involved. The longer you spend not communicating, the better and stronger your case becomes.

1) So then, are you saying, that even If I cut off all contact, no calls to him, no texts, nothing, and leave him alone, that even in for example 3 months he can go get a rest order against me, even though he has not heard from me in 3 months?

2) at this point, can I also get a rest order against him too, in fear that he may hit me again? ( does his history of domestic violence and currently being on probation come into play at all?

3) what would he need to present or say in court to get a granted rest order?

My apologies on the delay, I logged off last night and did not see your subsequent response.

1) So then, are you saying, that even If I cut off all contact, no calls to him, no texts, nothing, and leave him alone, that even in for example 3 months he can go get a rest order against me, even though he has not heard from me in 3 months?It would be much harder for him to obtain an order after 3 months. If he is no longer being harassed in the near past, he cannot claim that he is being contacted against his consent.

2) at this point, can I also get a rest order against him too, in fear that he may hit me again? ( does his history of domestic violence and currently being on probation come into play at all?That depends--if he did not make any threats against you lately, I do not see grounds under which the courts will decide to agree and allow this to be entered against your ex.

3) what would he need to present or say in court to get a granted rest order?He would have to convince the judge that you are harassing him, and if you did have a history prior to this of violence against him or his personal items, bring that up in court. He can also bring up images, police reports, phone calls, emails, copies of texts and voice mails that you may have left for him.

I know you have given me the best answer you could given what information I provided to you, but I am extemely nervous about this. I wanted to ask you, what happens if he gets granted a temporary RO, but when they come to serve me, I am not home, what happens if I am not home when they attempt to serve me ? Do they send a letter in mail to serve, or do I have to personally be served?

- also, at this point, I am completly staying away, so whats the best way for me to convince the judge not to grant the Ro?

Thank you for your follow-up. I will do my best to assuage your fears based on your imperfect information.

If it so happens that a TRO gets granted,you can either be served personally (by a sheriff), or by certified mail. A TRO by itself is NOT permanent--you can still go to court and attempt to convince the judge that you are not a danger to the other party. For example showing that you stayed away once you were informed by him to stay away AND lack of further communication would go a long way from making the judge hesitate in granting a permanent order against you. Really, that is the best way to show the court that you are not a risk--if from this point on AND until the actual hearing for the RO you remain completely away from the person in question. Then, if you prevail, the TRO against you will be dismissed and it will not be made permanent (getting a TRO against you is not the final step, as you must be granted a hearing and an opportunity to show that this was not a valid order).

Thank you so much, and I appologize for bothering you again, I had a few more questions.

1) if I am contacting him, and he is replying back to me and returning my text messages, then can he still get a restraining order, if he himself is replying to me ?

2) if the judge finds out that I was not served, will they postpone the hearing and wait until there is proof that I am served? also, does he get to choose if someone serves me personally or if I am served by mail?

3) and finally, how can I prove to the judge that yes, I was bothering him, but I did in fact stop and I have stopped for example for 2 or 3 months, but he out of the blue after 3 months goes to get a Ro? how can I show proof to the judge that I have not contacted him during that time?

Ma'am, you are not "bothering" me, I am truly happy to assist you with your question. Please do not ever feel as if your concerns are a bother, as they are obviously important to you.

1) if I am contacting him, and he is replying back to me and returning my text messages, then can he still get a restraining order, if he himself is replying to me ?That very much depends on the response. If he is responding and stating that he no longer wishes to be in touch, and you proceed to contact him further, even if he does respond it does make it more likely to the courts that the communication is unwanted. Otherwise you do have a very strong claim that this is not communication that is unwanted or unconsented.

2) if the judge finds out that I was not served, will they postpone the hearing and wait until there is proof that I am served? also, does he get to choose if someone serves me personally or if I am served by mail?Until you are properly served, there cannot be a hearing. A temporary order will still be place limiting contact, but a final hearing in front of the judge will simply not take place. Yes, he can choose how you are served.

3) and finally, how can I prove to the judge that yes, I was bothering him, but I did in fact stop and I have stopped for example for 2 or 3 months, but he out of the blue after 3 months goes to get a Ro? how can I show proof to the judge that I have not contacted him during that time? By showing possible phone records, or email history. If you can show that there is no recent contact, and you honored his wishes and left him alone, the court is less likely to grant a permanent order against you.

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